USCA4 Appeal: 21-2345 Doc: 30 Filed: 07/27/2023 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-2345
LAWRENCE BAILEY; WILLIAM ESTRADA, on behalf of themselves and all others similarly situated,
Plaintiffs – Appellants,
v.
THOMPSON CREEK WINDOW COMPANY, a Maryland Corporation; RICK WUEST,
Defendants – Appellees.
Appeal from the United States District Court for the District of Maryland, at Greenbelt. Lydia Kay Griggsby, District Judge. (8:21-cv-00844-LKG)
Submitted: October 5, 2022 Decided: July 27, 2023
Before RICHARDSON, QUATTLEBAUM, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Christopher Le, BOIESBATTIN LLP, Fairfax, Virginia; Elaine A. Ryan, AUER RYAN P.C., Maricopa, Arizona; Karl J. Protil, Jr., SHULMAN, ROGERS, GANDAL, PORDY & ECKER, P.A., Potomac, Maryland; Tim Bosson, BOSSON LEGAL GROUP, PC, Fairfax, Virginia, for Appellants. John A. Bourgeois, Bradley M. Strickland, KRAMON & GRAHAM, P.A., Baltimore, Maryland; Diane J. Zelmer, BERENSON LLP, Jupiter, Florida, for Appellees. USCA4 Appeal: 21-2345 Doc: 30 Filed: 07/27/2023 Pg: 2 of 7
Unpublished opinions are not binding precedent in this circuit.
2 USCA4 Appeal: 21-2345 Doc: 30 Filed: 07/27/2023 Pg: 3 of 7
PER CURIAM:
Lawrence Bailey and William Estrada each bought windows from Thompson Creek
Window Company. Thompson Creek markets its windows as being ENERGY STAR-
certified, a moniker attached to windows that meet a certain, government-set, energy
efficiency standard. But, according to Bailey and Estrada, Thompson Creek windows are
not ENERGY STAR-certified. So Bailey and Estrada sued them in federal court, in a class
action lawsuit, for various Maryland state law torts.
The trouble with suing Thompson Creek in federal court is that Bailey and Estrada
had promised not to do that when they bought their windows. When purchasing the
windows, they both signed contracts that contained an arbitration agreement. In a section
labeled “Additional Terms and Conditions,” there was a subsection titled “Arbitration of
Disputes.” That section explained that “Contractor and Owner(s) agree that any and all
disputes . . . arising under or relating to this Agreement . . . shall be subject to binding
arbitration . . . [except that] Contractor retains the option to use judicial or non-judicial
relief to enforce the monetary obligation represented by this Agreement.” J.A. 65. In case
there was any ambiguity, that subsection also included, in bold, a paragraph reiterating that
“[b]oth Contractor and Owner(s) are hereby agreeing to choose arbitration.” J.A. 65.
The district court dismissed the suit, finding it must be arbitrated. It rejected the
plaintiffs’ argument that the arbitration provision was unenforceable because it lacked
consideration and because it was unconscionable. Plaintiffs now appeal, raising those same
two arguments. We agree with the district court and so affirm.
3 USCA4 Appeal: 21-2345 Doc: 30 Filed: 07/27/2023 Pg: 4 of 7
I. The Arbitration Agreement Is Supported by Consideration
Arbitration is voluntary. Parties must consent to the process to be bound by the
process. Cheek v. United Healthcare of Mid– Atl., Inc., 378 Md. 139, 146 (2003); Curtis
G. Testerman Co. v. Buck, 340 Md. 569, 579 (1995) (“[A] party cannot be required to
submit any dispute to arbitration that it has not agreed to submit.”). 1 One way to consent is
by agreeing in advance, in writing, to route future claims through arbitration. When parties
do this, it is known as an arbitration agreement. See Cheek, 378 Md. at 146–47.
Under Maryland law, arbitration agreements must be supported by consideration to
be enforceable. Id. at 147; see also Noohi, 708 F.3d at 606–07. When checking for
consideration, courts do not weigh each side’s benefits from the bargain. Harford Cty. v.
Town of Bel Air, 348 Md. 363, 383 (1998). The agreement does not have to be equal to be
enforceable. Id. (“[I]t is well settled that the Courts of Law . . . will not inquire into the
adequacy of the value exacted for the primes so long as it has some value.”). But each
party must exchange mutual promises that obligate them to act. If a party fails to promise
to do anything, their consideration is illusory and the contract is unenforceable. Walther
v. Sovereign Bank, 386 Md. 412, 432–34 (2005).
The arbitration agreements between Bailey and Thompson Creek and Estrada and
Thompson Creek were supported by consideration. If a party agrees to arbitrate some
claims, they are obligated to do so. So they have provided consideration. Cheek, 378 Md.
1 We apply Maryland contract law to this dispute. See Noohi v. Toll Bros., Inc., 708 F.3d 599, 607 (4th Cir. 2013).
4 USCA4 Appeal: 21-2345 Doc: 30 Filed: 07/27/2023 Pg: 5 of 7
at 144. And if both parties agree to arbitrate, then both parties have provided consideration
and the agreement is enforceable (barring any other valid objection). All parties to the
Thompson Creek arbitration agreements promised to arbitrate some claims. So the
agreement had enough consideration to be enforceable.
Bailey and Estrada fight this conclusion by arguing that Thompson Creek’s promise
to submit to arbitration is illusory because Thompson Creek was allowed to sue purchasers
in court to “enforce the monetary obligation represented by the” window purchase
agreement. See J.A. 65. Since, according to them, these are the only claims Thompson
Creek might plausibly bring, Thompson Creek has not truly agreed to bring any claims in
arbitration. Therefore, according to Bailey and Estrada, Thompson Creek has not agreed
to be bound by anything at all.
This argument fails because it mistakes the nature of consideration. The question is
not whether Thompson Creek has agreed to give up its ability to bring a certain class of
claims. It is whether Thompson Creek has agreed to arbitrate any claims at all—no matter
who brings them or how likely those claims were to be brought. See, e.g., Cheek, 378 Md.
at 149 (declaring an arbitration agreement unenforceable because the seller’s promised
performance was “entirely optional” and so not a “real promise at all”); Walther, 386 Md.
at 433 (finding arbitration clause supported by consideration because both parties were
“bound to arbitrate certain disputes”); Noohi, 708 F.3d at 610 (applying Maryland law to
find no consideration because the arbitration provision bound only plaintiffs to arbitration).
And it has. Along with its own claims unrelated to enforcing monetary obligations,
5 USCA4 Appeal: 21-2345 Doc: 30 Filed: 07/27/2023 Pg: 6 of 7
Thompson Creek has agreed to arbitrate all claims brought by purchasers against
Thompson Creek. 2 That is all the consideration Maryland law requires.
II. The Arbitration Agreement Is Not Unconscionable
An arbitration agreement, like all contracts, is unenforceable if they are
unconscionable. Walther, 386 Md. at 425–26. There is a procedural and substantive aspect
to unconscionability. Id. at 425–27. Since the district court addressed only substantive
unconscionability, and since we agree with its determination, we need not address
procedural unconscionability.
The arbitration agreement is not substantively unconscionable. An arbitration
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USCA4 Appeal: 21-2345 Doc: 30 Filed: 07/27/2023 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-2345
LAWRENCE BAILEY; WILLIAM ESTRADA, on behalf of themselves and all others similarly situated,
Plaintiffs – Appellants,
v.
THOMPSON CREEK WINDOW COMPANY, a Maryland Corporation; RICK WUEST,
Defendants – Appellees.
Appeal from the United States District Court for the District of Maryland, at Greenbelt. Lydia Kay Griggsby, District Judge. (8:21-cv-00844-LKG)
Submitted: October 5, 2022 Decided: July 27, 2023
Before RICHARDSON, QUATTLEBAUM, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Christopher Le, BOIESBATTIN LLP, Fairfax, Virginia; Elaine A. Ryan, AUER RYAN P.C., Maricopa, Arizona; Karl J. Protil, Jr., SHULMAN, ROGERS, GANDAL, PORDY & ECKER, P.A., Potomac, Maryland; Tim Bosson, BOSSON LEGAL GROUP, PC, Fairfax, Virginia, for Appellants. John A. Bourgeois, Bradley M. Strickland, KRAMON & GRAHAM, P.A., Baltimore, Maryland; Diane J. Zelmer, BERENSON LLP, Jupiter, Florida, for Appellees. USCA4 Appeal: 21-2345 Doc: 30 Filed: 07/27/2023 Pg: 2 of 7
Unpublished opinions are not binding precedent in this circuit.
2 USCA4 Appeal: 21-2345 Doc: 30 Filed: 07/27/2023 Pg: 3 of 7
PER CURIAM:
Lawrence Bailey and William Estrada each bought windows from Thompson Creek
Window Company. Thompson Creek markets its windows as being ENERGY STAR-
certified, a moniker attached to windows that meet a certain, government-set, energy
efficiency standard. But, according to Bailey and Estrada, Thompson Creek windows are
not ENERGY STAR-certified. So Bailey and Estrada sued them in federal court, in a class
action lawsuit, for various Maryland state law torts.
The trouble with suing Thompson Creek in federal court is that Bailey and Estrada
had promised not to do that when they bought their windows. When purchasing the
windows, they both signed contracts that contained an arbitration agreement. In a section
labeled “Additional Terms and Conditions,” there was a subsection titled “Arbitration of
Disputes.” That section explained that “Contractor and Owner(s) agree that any and all
disputes . . . arising under or relating to this Agreement . . . shall be subject to binding
arbitration . . . [except that] Contractor retains the option to use judicial or non-judicial
relief to enforce the monetary obligation represented by this Agreement.” J.A. 65. In case
there was any ambiguity, that subsection also included, in bold, a paragraph reiterating that
“[b]oth Contractor and Owner(s) are hereby agreeing to choose arbitration.” J.A. 65.
The district court dismissed the suit, finding it must be arbitrated. It rejected the
plaintiffs’ argument that the arbitration provision was unenforceable because it lacked
consideration and because it was unconscionable. Plaintiffs now appeal, raising those same
two arguments. We agree with the district court and so affirm.
3 USCA4 Appeal: 21-2345 Doc: 30 Filed: 07/27/2023 Pg: 4 of 7
I. The Arbitration Agreement Is Supported by Consideration
Arbitration is voluntary. Parties must consent to the process to be bound by the
process. Cheek v. United Healthcare of Mid– Atl., Inc., 378 Md. 139, 146 (2003); Curtis
G. Testerman Co. v. Buck, 340 Md. 569, 579 (1995) (“[A] party cannot be required to
submit any dispute to arbitration that it has not agreed to submit.”). 1 One way to consent is
by agreeing in advance, in writing, to route future claims through arbitration. When parties
do this, it is known as an arbitration agreement. See Cheek, 378 Md. at 146–47.
Under Maryland law, arbitration agreements must be supported by consideration to
be enforceable. Id. at 147; see also Noohi, 708 F.3d at 606–07. When checking for
consideration, courts do not weigh each side’s benefits from the bargain. Harford Cty. v.
Town of Bel Air, 348 Md. 363, 383 (1998). The agreement does not have to be equal to be
enforceable. Id. (“[I]t is well settled that the Courts of Law . . . will not inquire into the
adequacy of the value exacted for the primes so long as it has some value.”). But each
party must exchange mutual promises that obligate them to act. If a party fails to promise
to do anything, their consideration is illusory and the contract is unenforceable. Walther
v. Sovereign Bank, 386 Md. 412, 432–34 (2005).
The arbitration agreements between Bailey and Thompson Creek and Estrada and
Thompson Creek were supported by consideration. If a party agrees to arbitrate some
claims, they are obligated to do so. So they have provided consideration. Cheek, 378 Md.
1 We apply Maryland contract law to this dispute. See Noohi v. Toll Bros., Inc., 708 F.3d 599, 607 (4th Cir. 2013).
4 USCA4 Appeal: 21-2345 Doc: 30 Filed: 07/27/2023 Pg: 5 of 7
at 144. And if both parties agree to arbitrate, then both parties have provided consideration
and the agreement is enforceable (barring any other valid objection). All parties to the
Thompson Creek arbitration agreements promised to arbitrate some claims. So the
agreement had enough consideration to be enforceable.
Bailey and Estrada fight this conclusion by arguing that Thompson Creek’s promise
to submit to arbitration is illusory because Thompson Creek was allowed to sue purchasers
in court to “enforce the monetary obligation represented by the” window purchase
agreement. See J.A. 65. Since, according to them, these are the only claims Thompson
Creek might plausibly bring, Thompson Creek has not truly agreed to bring any claims in
arbitration. Therefore, according to Bailey and Estrada, Thompson Creek has not agreed
to be bound by anything at all.
This argument fails because it mistakes the nature of consideration. The question is
not whether Thompson Creek has agreed to give up its ability to bring a certain class of
claims. It is whether Thompson Creek has agreed to arbitrate any claims at all—no matter
who brings them or how likely those claims were to be brought. See, e.g., Cheek, 378 Md.
at 149 (declaring an arbitration agreement unenforceable because the seller’s promised
performance was “entirely optional” and so not a “real promise at all”); Walther, 386 Md.
at 433 (finding arbitration clause supported by consideration because both parties were
“bound to arbitrate certain disputes”); Noohi, 708 F.3d at 610 (applying Maryland law to
find no consideration because the arbitration provision bound only plaintiffs to arbitration).
And it has. Along with its own claims unrelated to enforcing monetary obligations,
5 USCA4 Appeal: 21-2345 Doc: 30 Filed: 07/27/2023 Pg: 6 of 7
Thompson Creek has agreed to arbitrate all claims brought by purchasers against
Thompson Creek. 2 That is all the consideration Maryland law requires.
II. The Arbitration Agreement Is Not Unconscionable
An arbitration agreement, like all contracts, is unenforceable if they are
unconscionable. Walther, 386 Md. at 425–26. There is a procedural and substantive aspect
to unconscionability. Id. at 425–27. Since the district court addressed only substantive
unconscionability, and since we agree with its determination, we need not address
procedural unconscionability.
The arbitration agreement is not substantively unconscionable. An arbitration
agreement is substantively unconscionable when it is “so one-sided as to oppress or
unfairly surprise an innocent party” or when “there exists an egregious imbalance in the
obligations and rights imposed.” Id. at 431. Here, the parties agreed to arbitrate certain
claims and Thompson Creek reserved the right to bring others in court. Thompson Creek
may have gotten the better of that bargain, but that does not render the agreement
unconscionable. See id. at 433 (“We do not find that the exceptions to the arbitration
agreement, which allow [the defendant] to litigate certain specific claims instead of having
2 Thompson Creek’s promise to arbitrate some claims distinguishes its arbitration agreement from those at issue in Cheek and Noohi. In Cheek, the defendant reserved the right to alter the agreement at any time, for any reason. Cheek, 378 Md. at 149. So it was not obligated to arbitrate any claims and had provided no consideration. Likewise, in Noohi, only the plaintiff agreed to arbitration; the defendant made no promises at all. Noohi, 708 F.3d at 610. Conversely, Thompson Creek has provided consideration because it promised to arbitrate some claims and is bound to do so if those claims arise.
6 USCA4 Appeal: 21-2345 Doc: 30 Filed: 07/27/2023 Pg: 7 of 7
to submit them to arbitration, are so unfairly oppressive as to make the agreement
unconscionable.”). So the district court was correct to hold it enforceable.
AFFIRMED.